In May 2025, the Commission launched a wide-ranging public consultation on possible reforms to its merger guidelines.[1] The consultation covers seven core topics that underpin how the Commission assesses the competitive impact of mergers.

We have submitted a detailed response, which we will share in the weeks to come on our Cleary Antitrust Blog. Please find our main thoughts below.

A. Competitiveness and resilience

• Revisions to the guidelines should
  • Acknowledge the procompetitive effects of scale,including by indicating when it helps EU firms compete globally, innovate, and invest.
  • Introduce a structured framework to assess resilience benefits of mergers that strengthen supply chain continuity, diversification, or access to critical inputs.
  • Give appropriate weight to forward-looking evidence and dynamic competition.
  • Recognize global asymmetries: European firms often compete against rivals with structural advantages (foreign subsidies, looser regulation, privileged access to inputs).
• Why?
  • Scale and resilience are essential competitive parameters: they enable firms to fund costly R&D, withstand market disruptions, and invest in long-term projects critical for the green and digital transitions.
  • In dynamic, innovation-driven sectors, competition is shaped by potential entry, investment capacity, and innovation pipelines, rather than static indicators such as market shares and short-term price effects.
  • Recognizing structural global asymmetries will help ensure EU firms are not at a lasting disadvantage compared to overseas competitors.

B. Assessing market power

• Revisions to the guidelines should
  • Assess market power using a variety of market-specific metrics, without undue focus on structural indicators.
  • Refrain from introducing rebuttable presumptions of market power.
  • Acknowledge that market power is not the only consideration relevant for the substantive appraisal of mergers.
  • Uphold but streamline the ability-incentives-effect framework for non-horizontal mergers.
• Why?
  • Market shares and other structural indicators cannot reveal firms’ ability to scale or invest to capture demand, let alone capture the full competitive landscape, especially in fast-moving, innovation-driven sectors.
  • Adopting a rebuttable presumption of market power would increase Type I errors and multiply the burden on merging parties.
  • Revisions to the guidelines should codify the Commission’s nuanced, flexible, and effects-based decisional practice.

C. Innovation and other dynamic elements

• Revisions to the guidelines should
  • Assess positive effects on innovation and investment, not just negative effects, if (i) the Commission identifies potential concerns in innovation competition, or (ii) absent innovation concerns, the parties provide plausible evidence of a transaction’s pro-competitive impact on innovation or investment.
  • Establish a unified analytical framework for assessing potential competition, and replace the current three-limb failing firm test with a unified two-stage counterfactual analysis.
  • Provide guidance on appropriate timeframes for evaluating future market developments.
• Why?
  • The EU has identified innovation and investment as key to its competitiveness, with the Draghi Report calling for a revised merger control framework that “incentivises companies to innovate and become more efficient.”
  • The current guidelines offer limited guidance on assessing the impact of mergers on innovation and investment, creating a gap between the EU’s policy goals and its merger control guidance.

D. Sustainability

• Revisions to the guidelines should
  • Recognize that merger control can contribute to the EU’s sustainability goals and that sustainability can be a parameter of competition.
  • Include a framework for assessing mergers with sustainability-related consumer benefits, including dynamic and out-of-market efficiencies.
  • Approach sustainability-related theories of harm with caution.
• Why?
  • The current guidelines do not address how mergers with a sustainability objective should be assessed, nor how the Commission should balance the anticompetitive effects of a merger against its contribution to climate and other sustainability objectives.
  • Such guidance is urgently needed, given the possibility that short-term impacts on competitive parameters such as price and output may be outweighed by long-term gains from accelerating the global transition to net zero.

E. Digitalization

• Revisions to the guidelines should
  • Be incremental, as the current guidelines provide rigorous, yet flexible, analytical frameworks that remain relevant to the assessment of digital mergers.
  • Ecosystems, interoperability, and access to input considerations are not new, and the Commission has successfully applied the assessment framework of the existing guidelines to such concerns in digital markets and beyond.  Other features and theories of harm typically associated with digital and tech markets are not novel and could be effectively addressed under the existing guidelines.
  • Privacy and data protection considerations are not by default relevant in digital markets and can be assessed, where appropriate, as non-price competition parameters.  They do not require a new framework of assessment.
• Why?
  • Digitalization of the economy has been a major development over the past decades, and the digital and tech sectors are key drivers of innovation and growth in Europe and globally.  Enforcement in this sector should be effective but based on reliable, tested, and evidence-based principles.
  • The Commission has consistently and successfully applied its current assessment framework to digital and tech cases.  While some clarifications may be made on how to assess specific features and theories of harm, the overall assessment framework should remain to preserve analytical clarity and legal certainty.

F. Efficiencies

• Revisions to the guidelines should
  • Maintain the three-pronged efficiency test, but interpret and assess its prongs in a more balanced and pragmatic way.
  • Assess efficiencies in parallel with competitive effects.
  • Align both the evidentiary standard and counterfactual for efficiencies and anticompetitive effects.
  • In case of remaining doubt, consider efficiencies in remedy design.
• Why?
  • Most mergers will generate efficiencies, but the current assessment is unduly restrictive as it notably focuses on short-term price efficiencies, applies a more rigid standard of proof for efficiencies than for competitive harm, and fails to consider out-of-market efficiencies.
  • Merging parties have been deterred from making detailed efficiency arguments given the very low probability that such arguments will succeed and the (perceived) risk that doing so will signal a lack of faith in their arguments on the absence of anticompetitive effects.

G. Media plurality, labor markets, and defense

• Revisions to the guidelines should
  • Refrain from considering non-competition related objectives such as media plurality, democracy, and labor market considerations in merger control.
  • Apply an analytical framework that facilitates consolidation (and looks beyond artificially small local markets) in strategic sectors that are critical for EU’s security and resilience.
• Why?
  • The EU’s legislative framework sufficiently safeguards media plurality, democracy, and labor markets consideration – these do not need to be included in EU merger control.
  • The Guidelines should facilitate consolidation in areas critical for the EU’s security and resilience by looking beyond artificially narrow market and placing more weight on broader considerations, such as post-merger efficiencies, investment plans, a deal’s strategic importance to EU interests.
  • The Commission should consider extending this framework to other industries strategically important for EU’s economic security, such as semiconductors.

[1] See, our May 12 alert The European Commission Launches Wide-Ranging Review of EU Merger Guidelines, available here.